Civil commitment for convicted criminals.

The right-to-die decision may gamer more headlines, but the most troubling civil liberties decision of the term is Kansas v. Hendricks.(1) The case arose when Kansas authorities invoked the state's new sexually violent predator (SVP) law to commit Leroy Hendricks after he had served a sentence for child molestation.

Traditional civil commitment law requires a showing, by clear and convincing evidence, that the person to be committed is mentally ill and a danger to self or to others.(2) The SVP law also requires a showing of dangerousness but requires a different threshold finding than "mental illness."

The SVP statute applies only to people who have been charged with a sexual offense and convicted, found incompetent to stand trial, or acquitted on grounds of insanity or mental disease. And instead of requiring the state to show that the person is "mentally ill," the Kansas law requires the state to show that the person has a "mental abnormality."

The Kansas law threatens civil liberty in two general ways. First, as a substantive matter, the category of "mental abnormality" is a new and broader category than "mental illness." Officials are notoriously prone to overestimate dangerousness,(3) so the SVP law weakens the most important limit on civil commitment. For example, could a state define illegal drug use as a "mental abnormality" and thereby justify the commitment of any person who fails a urinalysis test for the drugs heroin, cocaine, or marijuana?

Second, procedurally, the act looks like an end run around the procedural safeguards of the criminal process. The state, subject to very broad Eighth Amendment limits, may punish criminal offenses as it pleases.(4)

There is little doubt that under current law a life sentence for a child molester with a record of similar offenses would survive constitutional scrutiny.

But the state of Kansas chose not to proceed criminally. Hendricks had served his time for the offense for which he was convicted. Then, in legislation not on the books at the time of Hendricks's crime, the state imposed the enormous new liability of indefinite commitment.

The U.S. Supreme Court unanimously rejected Hendricks's substantive challenge, but split 5 to 4 in upholding the procedural challenge based on the ex post facto law clause.

Substantive due process 

The Supreme Court of Kansas ruled for Hendricks on the substantive ground.(5) Invoking substantive due process, the state high court held that civil commitment is constitutional only upon a showing of mental illness.

None of the nine justices of the U.S. Supreme Court agreed with this holding.(6) The unanimity suggests either that hard cases make bad law (Hendricks admitted an uncontrollable propensity to molest young children) or that the Kansas law is really no different than traditional civil commitment practice.

The latter interpretation is more comforting and finds some support in the language of the opinion. Justice Clarence Thomas wrote for the majority that

contrary to Hendricks's assertion, the term

"mental illness" is devoid of any talismanic 

significance. Not only do "psychiatrists

disagree widely and frequently on what

constitutes mental illness," but the Court

itself has used a variety of expressions to

describe the mental condition of those

properly subject to civil confinement.

Indeed we have never required state

legislatures to adopt any particular

nomenclature in drafting civil commitment

statutes.... To the extent that the civil

commitment statutes we have considered set

forth criteria relating to an individual's

inability to control his dangerousness, the

Kansas act sets forth comparable criteria and

Hendrick's condition doubtless satisfies those

Criteria.(7)

The last point is crucial. Psychiatrists may classify pedophilia as a "personality disorder" rather than a mental illness, but the sense of the community is that a pedophile is less wicked than sick. Nobody would think of the greed inspiring robbery as a "mental abnormality." Nonetheless, the Court's reduction of the traditional two-step inquiry (mental illness and dangerousness) into a single inquiry into selfcontrol suggests a wide scope for civil commitment.

Every crime manifests a failure of self-control. Obvious examples include domestic violence and drug use. Why not lock up, indefinitely, members of competing gangs based on their propensity to attack their rivals?

The Hendricks case caused no dissent on this point because Hendricks seems very much like a sick, rather than an evil, person. Yet, in Foucha v. Louisiana, four members of the Court voted to uphold the civil commitment of an insanity-defense acquittee who was found to be no longer suffering from temporary psychosis but was diagnosed with an "antisocial personality."(8)

Justice Sandra Day O'Connor refused to uphold the commitment only because Foucha was confined in a penal institution rather than a treatment facility.(9) If an "antisocial personality" (which in lay language means having a mean streak) is enough to justify an inquiry into dangerousness, the Court could be prepared to accept commitment founded, for practical purposes, on dangerousness alone.

Such a development would be both oppressive and paradoxical. It would be oppressive because findings of dangerousness are easily made. If officials commit a person who would not have acted violently, nothing happens. If officials fail to commit a person who then commits serious crimes, political reaction will be intense. Given the problematic nature of predicting future behavior, and the applicable political incentives, arbitrary and discriminatory commitments would be the likely result.

Committing the sane but dangerous would be paradoxical as well as dangerous. The post-Hinckley return to the cognitive test of legal insanity was predicated on the assumption that people can control their behavior and are responsible when they fail to do so. Hendricks has now been held criminally responsible for behavior the state denies he can control.

It is by no means clear, however, that the Court would approve civil commitment of people whose lack of self-control is not attributable to some manifest mental aberration. The Court took pains to note that "mental health professionals who evaluated Hendricks diagnosed him as suffering from pedophilia, a condition the psychiatric profession itself classifies as a serious mental disorder." (10) That language looks in one direction, while the Foucha case looks in another.

Civil punishment?

Once the substantive due process challenge was disposed of, the procedural issues became the focus of the case. Hendricks argued that the SVP commitment imposed additional punishment on him for an offense of which he was previously convicted, in violation of the ex post facto law clause and the double jeopardy clause. The majority rejected these contentions on the ground that the SVP law authorized civil, rather than criminal, proceedings.

Under traditional principles a person could be civilly committed upon a showing of mental illness and dangerousness independent of the criminal process. Civil commitment could take place even if the person had committed no crime, been convicted of a crime, or been acquitted of a crime. The procedures for commitment need not follow those required in criminal cases. For example, the Supreme Court has held that civil commitment orders need not be supported by proof beyond a reasonable doubt.(11)

Since civil commitment has nonpunitive purposes, the commitment following conviction violates neither the ex post facto law nor the double jeopardy clause. Where the dissenters parted company from the majority concerns the characterization of Hendricks's commitment as civil.

The dissenters emphasized the fact that commitment was triggered by a criminal offense and that the state courts had found a punitive purpose.(12) The majority emphasized the state's characterization of the proceedings as civil and the representation by the state's counsel at argument that extensive treatment was now being provided to people committed under the SVP law.(13)

Reasonable judges are likely to disagree about where the civil/criminal line should be drawn in particular cases. The more fundamental question is the substantive one of whether sane but dangerous people can be confined solely to protect society. A case like Hendricks does not quite squarely raise this issue, because Hendricks had in fact committed an offense for which he could be detained for a very long period.

If Kansas law provided that sexually violent predators who are convicted of rape or child molestation be sentenced to life in prison, subject to release upon a finding that they are no longer dangerous, no serious constitutional question would arise. At least with respect to cases that arise after its adoption, all the sexually violent predator law does is to change the sentence applicable to sexual crimes. What the state can do directly it should be allowed to do indirectly.

Even the Foucha case did not quite raise this issue, for Foucha had been acquitted on the criminal charge on the ground of insanity, not on the ground of, say, mistaken identity or self-defense. Arguably the state can, so far as the Constitution is concerned, dispense with the insanity defense completely. Again arguably, the Louisiana scheme simply imposed a condition on invocation of the insanity defense.

Nonetheless, Hendricks is cause for concern. It joins a growing line of modem cases in which the Court has accepted confining people in institutions absent a criminal conviction.(14) To all appearances, the Court is sliding down a slippery slope, one that ends in state power to confine people who are not insane and who have committed no crime.

Notes

(1.) No. 95-1649, 1997 WL 338555 (U.S. June 23, 1997). Subsequent page references to the opinion are to the WESTLAW pagination.

(2.) See Addington v. Texas, 441 U.S. 418 (1979).

(3.) See, eg., JOHN MONAHAN, THE CLINICAL PREDICTION OF VIOLENT BEHAVIOR (1981).

(4.) See, e.g., Harmelin v. Michigan, 501 U.S. 957 (1991).

(5.) In re Hendricks, 912 P.2d 129 (Kan. 1996).

(6.) See Hendricks, 1997 WL 338555, at *6; id. at *15 (Kennedy, J., concurring); id. at *16 (Breyer, J., dissenting). Breyer's opinion was joined by Justices Ginsburg, Souter, and Stevens, but Ginsburg declined to join this section of the Breyer dissent; she did, however, write separately to explain her views.

(7.) Id. at *8 (citations omitted) (emphasis added).

(8.) 504 U.S. 71 (1992).

(9.) Id. at 86 (O'Connor, J., concurring).

(10.) Hendricks, 1997 WL 338555, at *8. Breyer was even more concerned about limiting civil commitment to cases of mental disturbance. See id. at *17-18.

(11.) Addington, 441 U.S. 418, 431.

(12.) Hendricks, 1997 WL 338555, at *21-22.

(13.) Id. at *9-11, *13.

(14.) See Reno v. Flores, 507 U.S. 292 (1993); United States v. Salerno, 481 U.S. 739 (1987); Schall v. Martin, 467 U.S. 253 (1984).

Donald A. Dripps is a professor at the University of Illinois College of Law.